'Small victory' for residents

Changes to Solley site could cost $10 million

utility might appeal

January 25, 1998|By Cheryl Lu-Lien Tan | Cheryl Lu-Lien Tan,SUN STAFF

Baltimore Gas and Electric Co. must install a $10 million clay liner under its fly ash disposal site in the Solley area to prevent polluting leaks, the Anne Arundel County Board of Appeals has ordered.

The board issued the costly verdict to BGE last week after months of hearings in which Solley residents challenged the utility's use of 1.6 million tons of fly ash as filler in a new section of the Brandon Woods Industrial Park.

Two other sections of the park have been filled in with fly ash but do not have clay liners.

"It's a small victory a little crumb," said Mary Rosso, president of the Maryland Waste Coalition and a member of the Coalition of Communities and Citizens Against Fly Ash (CCCAF).

The CCCAF had wanted the county to rescind the permit it granted the company to use fly ash as filler.

"They are recognizing that there should be a clay liner there, but it's a little late. They should have done that before" with the other two sections of the industrial park, she said.

Peggy Mulloy, a BGE spokeswoman, said the utility is reviewing the decision and may appeal to the Anne Arundel Circuit Court.

The ash, a combination of chunks and fine fly ash dust, is a byproduct of coal burning at two nearby BGE power plants. The utility trucks the ash to Brandon Woods, where it is developing a business and industrial park over the fill.

Fly ash "has been classified by the Maryland Department of the Environment as a nonhazardous material," Mulloy said, "and yet these people continue to fight us on this.

"If you have an unhazardous substance, and people are still making you put a liner in why?" she said.

John B. Britton, a lawyer representing the residents and the CCCAF, said his clients also are reviewing the decision and might appeal. Both sides have until Feb. 20 to appeal.

The year-long battle involving the Board of Appeals began after Robert C. Wilcox, then the county administrative hearing officer, gave BGE permission in late 1996 to fill about 150 acres of Brandon Woods' newest section with fly ash. It was Wilcox's first ruling under a 1994 county zoning law that requires obtaining special-exception status to fill a site with the ash.

Roots date to 1982

BGE has dumped ash at the site since 1982, when operations at its nearby Brandon Shores power plant began. The company burns about 5 million tons of coal at the plant annually, producing about 500,000 tons of fly ash.

About 3 million tons were used as structural filler in building Phases 1 and 2 of the industrial park. The ash consists of silica, alumina and iron oxide, material found in ordinary soil.

During the hearings, which lasted about three hours each and were held between March and November, residents testified that they believed BGE wasn't addressing the long-term effects of fly ash disposal and that they were concerned about the effect of airborne fly ash particles.

They provided experts who testified that the small particles of fly ash are "easily inhaled into human lungs" and that the risk of ground water contamination from fly ash is high because the ground water is elevated around the Marley Peninsula.

"That comes out of putting millions of tons of anything on a fragile peninsula like Marley Neck," said Steve Donnelly, a real estate developer planning a housing subdivision in the area. "The pressure of the weight forces up the ground water around it. It's like putting a cinder block on a sponge."

Experts state case

At the hearings, BGE's experts emphasized that Brandon Woods is not their only fly ash disposal site, that they do seek alternative sites, and that using fly ash as structural filler has no impact on public health.

BGE had at first insisted that a natural layer of clay would prevent leachate -- a liquid produced when water passes through the layer of fly ash -- from contaminating ground water.

But BGE geo-technical engineering expert Barbara Cook acknowledged on cross-examination that the layer is "not continuous throughout the site."

Precedent feared

"We're concerned about the precedent this clay liner issue will set," said BGE's Mulloy, noting that the utility contributed fly ash used in the construction of the Key Bridge extension in Baltimore County and to a Gambrills rock quarry. "What happens to all the other places where we place fly ash? This could get to be ridiculous.

"We have talked to the citizens, met with them individually and tried to negotiate something that all parties could accept," Mulloy added. "But the bottom line is, they want us to go away, and they just won't listen to anything we say."

Other concerns

Britton said he isn't happy with the board's decision because it did not address other issues, including air contamination by fly ash particles and ground water elevation.

"The county now has this issue that it must address," Britton said.

"If the county has made a legal determination that there is a risk [of ground water contamination by fly ash] and has mitigated that risk by requiring a clay liner, how does the county answer the public when it says, 'What are you doing about the risk of contamination that already exists in Phase 1 and 2?' "